Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the comments made by the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), as well as the Government’s reply thereon. In particular, the Committee notes the IUF’s contention that the Emergency Regulations recently promulgated by the Government suppress workers’ rights under this Convention in services declared to be essential and that the list of essential services includes services which cannot be considered essential in the strict sense of the term. According to the IUF, the denial of workers’ rights in these regulations is comprehensive and all encompassing, and far exceeds any measure that could be justified by the emergency situation it purports to address.

The Committee notes the Government’s indication that the Emergency Regulations in no way violate or infringe the rights conferred on workers under Articles 3, 4 and 5 of the Convention. Furthermore, the Government clarifies that the schedule containing the list of services that could be declared by the President of the country as essential would be declared only as and when such declaration is indispensable. Depending on the services and the necessity to meet the situation, only the services required may be declared essential, thus it would not be possible to visualize the situation prematurely.

The Committee notes that Regulation 2(4) of the Emergency Regulations of 3 May 2000 refers to any order made by the President declaring any service to be of public utility or to be essential for national security or to the life of the community may be made generally for the whole of Sri Lanka or for any area or place specified in the order. Regulation 40, which makes it an offence to fail or refuse to perform work in an essential service, also refers to the necessary presidential order referred to in Regulation 2. The President has similar powers to issue orders under Regulations 10 and 12 relevant to industrial action. These regulations, together with the indication in the Government’s reply, would seem to indicate that the list of essential services in the schedule to the regulations provides a list of potential services which may be restricted under the regulations by presidential order. Moreover, the Committee does note that the services listed in the schedule go far beyond the strict sense of the term "essential services" as those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. In addition, there are other important regulations restricting the rights of workers in essential services which do not appear to refer to a pre-established presidential order, such as control of publications (Regulation 14), orders of restriction (Regulation 16), detention of persons (Regulation 17), and distribution of leaflets (Regulation 28). Furthermore, the Committee recalls that the Committee on Freedom of Association was seized in the early 1980s with a number of serious cases of violation of trade union rights and basic civil liberties arising from the application of the Emergency Regulations.

In this respect, the Committee first recalls that the freedom of association Conventions contain no provisions allowing the invocation of a state of emergency to justify exemption from the obligations arising under the Conventions or any suspension of their application. Such a pretext cannot be used to justify restrictions on the civil liberties that are essential to the proper exercise of trade union rights, except in circumstances of extreme gravity. Furthermore, in cases where the Government has invoked a crisis situation to justify provisions adopted under emergency or exceptional powers, the Committee is of the view that such measures cannot be justified except in a situation of acute national crisis and then only for a limited period and to the extent necessary to meet the requirements of the situation (see 1994 General Survey on freedom of association and collective bargaining,paragraphs 41 and 152). Given the ambiguous nature of some of the regulations referred to above, the Committee requests the Government to take the necessary measures to amend the Emergency Regulations so that they refer only to essential services in the strict sense of the term or cases of acute national crisis. In this regard, the Committee would also invite the Government to give consideration to an earlier statement which it had made in its report due under Convention No. 98 of the possibility of amending the emergency regulations then in force, so as to exempt industrial disputes from their application.

The Committee is raising a certain number of points in a request addressed directly to the Government.

[The Government is asked to report in detail in 2001.]